Intermountain West Journal of Religious Studies

Volume 1 2009
Number 1 Inaugural Issue

Marriage and Divorce in Islamic and Mormon

Polygamy: A Legal Comparison
Nate Olsen
University of Utah

Recommended Citation
Olsen, Nate "Marriage and Divorce in Islamic and Mormon Polygamy: A Legal Comparison."
Intermountain West Journal of Religious Studies 1, no. 1 (2009). http://digitalcommons.usu.edu/
imwjournal/vol1/iss1/6

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Olsen: Islamic/Mormon Polygamy 87

Nate Olsen
Nate Olsen is a J.D. candidate at the S. J.
Quinney College of Law, where he serves
on the 2009–10 Board of Editors of the Utah
Law Review. He graduated magna cum laude
from Brigham Young University with a B.A.
in Spanish and a minor in history.
88 IMW Journal of Religious Studies Vol. 1:1

Nate Olsen

Marriage and Divorce in

Islamic and Mormon Polygamy:
A Legal Comparison

This paper compares how Islam and Mormonism crafted the legal frame-
work of polygamy in an attempt to afford women important protections against
its inherent inequality. Islam and Mormonism provided these safeguards by
regulating how parties entered polygamy and by allowing women to initiate di-
vorce.

I. Introduction
In the fifth year of the Hijrah, Mohammad received a revelation that ush-
ered in the age of Shari’ah, or Islamic holy law: “To thee We sent the Scripture
in truth . . . so judge between them by what Allah hath revealed.”1 From this
revelation onward, Islam would encompass legal disputes that were previously
religion-neutral.2 In 1831, another revelation promised a similar rule of divine law
for the newly organized Church of Jesus Christ of Latter-day Saints: “Where-
fore, hear my voice and follow me, and you shall be a free people, and ye shall

1.  The Meaning of the Holy Qur’an, 11th ed., trans. ‘Abdullah Yusuf ‘Ali (Beltsville: Amana Publica-
tions, 2004), 5:48. For a discussion of when this verse was written, see Samuel D. Goitein, Studies in
Islamic Histories and institutions (Leiden: Brill Press, 1966), 126–34.
2.  Goitein, Studies in Islamic Histories and institutions, 131.

Intermountain West Journal of Religious Studies, Volume 1, Issue 1, pages 87–106. © 2009 by Utah State
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Olsen: Islamic/Mormon Polygamy 89

have no laws but my laws when I come, for I am your lawgiver…”3 Both Islam
and Mormonism4 became dynamic world religions that established theocratic
societies and unique legal systems. 5
Since the advent of Mormonism, commentators have noted the many
similarities it shares with Islam.6 For instance, both religions are a product of
a series of new revelations and a prophet receiving a sacred book.7 Both Mo-
hammad and Joseph Smith viewed their revelations as the commencement of
new dispensations, perfectly in line with older revelations and scriptures.8 The
Umma of Mohammad and the Zion of Joseph Smith were to be new social and
political communities governed by heavenly law.9 Finally, both Joseph Smith
and Mohammad received revelations governing the practice of polygamy.
There is, however, a striking similarity that has received comparatively lit-
tle attention: how the two religions designed similar legal structures around po-
lygamy which afforded plural wives important social protections by regulating
how a man acquired additional wives and by providing mechanisms for a wife to
initiate divorce. Section II examines the rights of polygamous wives within clas-
sical and modern Islam. Section III analyzes the rights of Mormon wives within
polygamy during the early Utah period. Section IV looks at the steps available
to women to pursue divorce in both Islam and Mormonism. One difficulty with
this comparison lies in the fact that within the history of Islamic polygamy, prac-

3.  The Doctrine and Covenants (Salt Lake City, UT: The Church of Jesus Christ of Latter-day
Saints, 1981), 38:22.
4.  By “Mormonism,” I refer to the Church of Jesus Christ of Latter-day Saints.
5.  Eduard Meyer, The Origin and History of the Mormons, trans. Heinz F. Rahde and Eugene Seaich
(Salt Lake City: University of Utah Press, 1912), 1.
6.  The comparison was frequently drawn by the critics of Mormonism. See, Thomas Ford, A His-
tory of Illinois From Its Commencement As A State In 1818 to 1847 (Chicago: University of Illinois
Press, reissue ed. 1995), 222 and Bruce Kinney, Mormonism: The Islam of America (New York: Flem-
ing H. Revell Company, 1912). Others used the comparison to highlight the tenacity and convic-
tion of the Mormons. See, Horace Greeley, Nauvoo Neighbor, 24 July 1844 and 14 August 1844.
7.  Compare Meyer, Origin and History of the Mormons, 44–50 with Joseph Smith History (Salt Lake
City, UT: The Church of Jesus Christ of Latter-day Saints, 1981), 1:14–20, 30–49.
8.  Doctrine and Covenants 128:121 and Holy Qur’an 2:2–4.
9.  Goitein, Islamic Histories and Institutions, 128 and Richard Bushman, Rough Stone Rolling (New
York: Knopf, 2005), 520.
90 IMW Journal of Religious Studies Vol. 1:1

tices differ among time periods, sects, and schools. The sheer weight of Islamic
history dwarfs Mormonism, a relatively recent arrival on the scene of world
religion. Yet the practice of polygamy in Classical Islam and modern reforms
throughout the Muslim world are similar enough to make a comparison with
Mormon polygamy worthwhile.

II. Marriage and Polygamy in Islam

a. Purpose of Islamic Marriage and Polygamy
The purpose of marriage in Islam is to create and sustain the Muslim fam-
ily, and to populate the world with believers.10 Marriage is required of every
Muslim man and woman, unless they are physically, mentally, or financially un-
able to marry.11 Yet strictly speaking, marriage is not a sacrament in Islam, nor
can it be seen purely as a secular contract. Muslim marriage is a contract in the
sense that it requires the mutual assent of both parties, allows for the parties
to add conditions, limits marriages with non-Muslims, and is dissolvable if ir-
reconcilable differences arise.12 But it is a religious covenant in the sense that
its purpose is to fill the earth with faithful Muslims; the primary means God
employs to realize his will as revealed in the Qur’an.13
Islamic polygamy served the general purposes of marriage, but it had oth-
er functions as well. Many Muslim scholars argue using the Qur’an that God
allows polygamy to ensure that the Muslim community cares for its widows and
orphans. The Quranic treatment of polygamy came in the wake of the Battle of
Uhud, a battle that left many Muslims without husbands or fathers Allowance
for the surviving men to take additional wives allowed them to receive the eco-

10.  Holy Qur’an 30:21 and John L. Esposito, Women in Muslim Family Law (Syracuse, NY: Syra-
cuse University Press, 2001), 15.
11.  See Holy Qur’an 30:21 and Esposito, Women in Muslim Family Law, 14.
12.  Hammudah ‘Abd Al ‘Ali, The Family Structure in Islam (Burr Ridge, IL: American Trust
Publications, 1977), 59. Islamic law allows a Muslim man to marry a Jew or Christian, but forbids a
woman to marry a non-believer. See, Chibli Mallat, Introduction to Middle Eastern Law (New York:
Oxford University Press, 2007), 357, 389.
13.  Holy Qur’an 7:189 and Esposito, Women in Muslim Family Law, 14–5.
Olsen: Islamic/Mormon Polygamy 91

nomic and social protections of marriage.14 Polygamy further allowed the early
Muslim Umma to form political ties with neighboring communities, and by en-
tering polygamy, Mohammad managed to pacify and convert previously hostile
tribes.15 Polygamy also provided a subtle encouragement to manumit slaves.16

b. Regulations and Restrictions in Islamic Polygamy

When the Quranic revelation on polygamy came, it extended greater pro-
tections to women. Polygamy in the pre-Islamic Middle East did not recognize
a limit to the number of wives a man could take.17 Husbands paid the Mahr, or
dower, to the wife’s family and not to the wife herself. As a result, she became
totally dependent upon her husband’s family for her maintenance.18 A wife had
no recourse to change her own status or seek divorce, yet she was subject to her
husband’s right to instant talaq (repudiation). The possibility of repudiation
without a dower hung over a woman like the sword of Damocles, threatening to
leave her destitute at any time and without warning.19
The Qur’an approved of polygamy, but limited its practice in important
ways. The revelation stated: “If ye fear that ye shall not be able to deal justly
with the orphans, marry women of your choice, Two, or three, or four; But if
ye fear that ye shall not be able to deal justly (with them), then only one…”20
The revelation allowed a man to take multiple wives, but on the condition that
he treat them all fairly. Additionally, a Muslim man was forbidden to take more
than four wives, even if he was capable of providing for them. If he repudi-
14.  See, Khan Noor Ephroz, Women and Law: Muslim Personal Law Perspective ( Jaipur, India:
Rawat Publications, 2003), 112 and Esposito, Women in Muslim Family Law, 19.
15.  Doi, Women in Shari’ah, 73–5.
16.  While the Qur’an limits the number of wives a man may take, there is no similar limit for tak-
ing slave concubines. The offspring of a slave woman, however, were free, and some commentators
believe that Islam allowed unlimited concubinage to encourage emancipation, which Islam regarded
as a laudable action. ‘Abd al ‘Ali, The Family Structure in Islam, 46–7.
17.  See, Ephroz, Women and Law, 105.
18.  Esposito, Women in Muslim Family Law, 13.
19.  Javaid Rehman, “The Sharia, Islamic Family Laws and International Human Rights Law: Ex-
amining the Theory and Practice of Polygamy and Talaq,” International Journal of Law, Policy and the
Family 21 (2007): 108, 113.
20.  Holy Qur’an 4:3.
92 IMW Journal of Religious Studies Vol. 1:1

ated his wife, the Qur’an obligated him

to give her the unpaid portion of the
dower for her maintenance.21
Modern reforms have expanded
the scope of these initial protections by
making polygamous marriage harder to
enter and easier to escape. Modernist
reformers, beginning with Mohammad
Abduh, have interpreted the Quranic
authorization of polygamy in 4:3 (stat-
Qur’an manuscript from Nasrid period, ca. 1230– 1492).
(Image copyright © The Metropolitan Museum of Art. Used by ing that “if you fear you will not be able
permission.)
to deal justly [with multiple wives],
then only one…”) with the later axiom
that “[y]e are never able to be fair and just as between women, even if it is your
ardent desire…”22 Abduh concluded that the authorization for polygamy must
have been a concession to early Muslims, struggling as they were to adapt their
customs and lifestyles to the rigors of the new faith. However, the Quranic ideal
was monogamy.23
Abduh’s interpretation has made its way into many legal codes, most no-
tably into the 1986 Arab Family Law Project, the model code of family law. The
project recommended a series of additional restrictions on Islamic polygamy.
Several countries have adopted segments of the project’s suggestions or have
taken additional measures to curb the practice of polygamy. Syria included in
Article 17 of its Law of Personal Status that a judge may prohibit a man from
taking another wife if he does not have the ability to support the new family.24
Morocco requires the husband to obtain permission from the first wife before
he can enter into a polygamous relationship, and allows the first wife to insert

21.  Esposito, Women in Muslim Family Law, 23.

22.  Holy Qur’an 4:129.
23.  Esposito, Women in Muslim Family Law, 48.
24.  Law of Personal Status 1953 (Decree No. 59 of 1953), Art. 17. The amended version requires a
man to state a “legal reason” for taking another wife. Mallat, Introduction to Middle Eastern Law, 378.
Olsen: Islamic/Mormon Polygamy 93

a condition into the marriage contract that the husband will not take another
wife.25 Yemen likewise follows the suggestions of the Arab Family Law Proj-
ect. 26However, Tunisia took these restrictions further and banned polygamy
in 1956.27
In looking at both classical and modern Islam’s treatment of polygamy,
the trend has been toward restricting the husband’s ability to take on additional
wives and enhancing the protections owed to the wife. By limiting the number
of wives in a family and requiring the wives be treated equally, early Islam re-
stricted the unhampered marital practices of the pre-Islamic Middle East. Some
contemporary Muslim nations have adopted the suggestions of the Arab Family
Law Project or similar legislation, expanding the rights women enjoyed under
classical Islam by giving them a greater voice in the husband’s decision to take
on multiple wives and ensuring his ability to maintain an expanded family.

III. Marriage and Polygamy in Mormonism

a. Purposes of Marriage and Polygamy in Mormonism
Marriage in Mormonism is a sacrament if solemnized in the temple under
the authority of the priesthood.28 In 1843, Joseph Smith recorded a revelation
explaining that a marriage not solemnized by the Mormon priesthood was “not
of force when [the parties] are dead, and when they are out of the world.”29 Par-
ties to such marriages could not aspire beyond being “angels” and “ministering

25.  Mallat, Introduction to Middle Eastern Law, 401.

26.  Before unification, South Yemen imposed greater restrictions on a man’s ability to enter
polygamy, requiring that he prove to the tribunal that his wife is sterile and the fact was unknown to
him before the contracting the marriage, or that the wife has a permanent or contagious illness with
no hope of cure. Ibid., 378.
27.  Personal Status Law Art. 18 states that “Polygamy is forbidden ... [and] is punishable by im-
prisonment of 1 year or a fine of 240,000 francs, or both.” Iraq enacted similar limitations in the Law
of Personal Status of 1959. Doi, Women in Shari’ah, 57. However, the strong backlash succeeded in
repealing the ban in 1963. Jaime M. Gher, “Polygamy and Same-Sex Marriage: Allies or Adversar-
ies Within the Same-Sex Marriage Movement,” William & Mary Journal of Women and the Law 14
(2008): 559, 591n237.
28.  Such marriages are also known as “temple sealings.”
29.  Doctrine and Covenants 132:15.
94 IMW Journal of Religious Studies Vol. 1:1

Joseph F. Smith, sixth president of the Church of Jesus Christ of Latter-day Saints, with his wives and children, ca. 1900. (Courtesy
Widstoe Collection, Utah State Historical Society)

servants” in the life to come.30 However, if a marriage is “sealed . . . by the Holy

Spirit of Promise, by him who is anointed, unto whom [God has] appointed this
power,”31 then the marriage would endure beyond death, and the parties would
be entitled to a “far more, and an exceeding, and an eternal weight of glory.”32 In
fact, to obtain the highest salvation, a person has to “enter into . . . the new and
everlasting covenant of marriage.”33 As one scholar put it, Mormon salvation
is essentially a family affair.34 The revelation warned of heavy consequences to
those who refused to accept polygamy: “For behold, I reveal unto you a new and
an everlasting covenant; and if ye abide not that covenant, then are ye damned;
for no one can reject this covenant and be permitted to enter into my glory.” 35

30.  Ibid., 16.

31.  Ibid., 19.
32.  Ibid., 16. This glory consisted of a person “going from a small capacity to a great capacity”
until arriving at the station of godhood, as Joseph taught that Christ and his Father had done. Bush-
man, Rough Stone Rolling, 533–7.
33.  Doctrine and Covenants 131:2. Joseph Smith referred to both monogamous and plural mar-
riages solemnized in the temple as the “new and everlasting covenant of marriage.” Joseph Smith,
History of the Church (Salt Lake City: Deseret News, 1912) 5:391–2.
34.  Bushman, Rough Stone Rolling, 355–7.
35.  Doctrine and Covenants 132:4.
Olsen: Islamic/Mormon Polygamy 95

The primary purpose of polygamy in Mormon theology was to prepare

the earth for the Second Coming and glory in the next life,36 though Mormons
at times justified polygamy as a cure for social evils (such as adultery, prostitu-
tion, abortion, and infanticide).37 However burdensome the practice was on
earth, men and women who lived the “higher law” of polygamy would receive
increased glory and honor in the life to come.

b. Regulations and Restrictions Within Mormon Polygamy

Contrasted with the Quranic revelation authorizing polygamy, the Mor-
mon revelation on plural marriage was theologically rich and administratively
barren. The revelation was primarily concerned with the life to come and con-
sequently, it did not provide any guidance as to how Mormons were to live in
polygamy while on earth. Contrasted with the Quranic revelation, it neither im-
posed a limit on the number of wives, nor required all wives be treated equally.
It did not necessitate a husband to prove his ability to provide for a polygamous
family. It also did not treat polygamy as an exception to the rule. Joseph’s revela-
tion did not simply tolerate polygamy—it commanded it.
In many ways, Mormon polygamy remains a mystery. Unlike Islam, Mor-
monism grew up in a puritanical society that viewed polygamy as barbaric, and
Mormons initially practiced polygamy in secret. Under Joseph Smith, the prac-
tice of polygamy differed in significant ways from the later Utah period, when
the church set up a theocratic government.38 This comparison will only look to
the Utah period, in which Mormons practiced polygamy under the jurisdiction
of the “the laws of Israel”—presumably as it was intended to be practiced.39

36.  Brigham Young, Journal of Discourses (Liverpool: Latter-day Saints Book Depot, 1867)
11:268–9.
37.  Speech of Harriet Cook Young, 13 January 1870 (Salt Lake City), reprinted in Jeffrey Tullidge,
Women of Mormondom (New York: Tullidge & Crandall, 1877) (advocating polygamy as a cure for
various social problems).
38.  For a description of how polygamy was carried out during the Nauvoo period, see James B.
Allen, Trials of Discipleship: The Story of William Clayton, A Mormon (Urbana: University of Illinois
Press, 1987), 188–202.
39.  For an overview of “Mormon law,” see Edwin Brown Firmage and Richard Collin Mangrum,
Zion in the Courts (Urbana: University of Illinois Press, 2001), 263–78.
96 IMW Journal of Religious Studies Vol. 1:1

While the Mormon revelation on polygamy did not impose the limits of
the Qur’an, it did allow men free rein in marriage. Mormon polygamy was regu-
lated in two significant ways. First, church leaders only allowed certain indi-
viduals to take multiple wives and second, the “Law of Sarah” required that the
first wife give her consent before the husband enter into polygamy.
Only Mormons whom church leaders “called,” through an inspired pro-
cess, could enter into polygamy. From the earliest occurrences of polygamy, Jo-
seph Smith (and later his successors as president of the church) had to authorize
the plural marriage. The revelation stated that the president of the church holds
the keys or authority to seal marriages, “and there is never but one on the earth
at a time on whom this power and the keys of this priesthood are conferred.”40
A polygamous marriage entered into without the approval of the president was
considered adultery.41 The experiences of William Clayton and Hyrum Brown
illustrate this point. At Nauvoo, Joseph approached Clayton in private and told
him it was “lawful” for him to take additional wives.42 When his plural wife
became pregnant and some members began calling for church discipline against
Clayton, Joseph told him, “[I]f they raise trouble about it and bring you before
me I will give you an awful scourging and probably cut you off from the church
and then I will rebaptise [sic] you and set you ahead as good as ever.”43 Brown,
on the other hand, began advocating polygamy in Michigan independent of Jo-
seph’s authority, and was “cut off from the Church for his iniquity.”44
Not only was unsanctioned polygamy punishable, but a man who refused
to take another wife after being called by Mormon leaders to do so was also
subject to reprimand. Brigham Young warned reluctant Mormons that “[i]f any
of you will deny the plurality of wives and continue to do so, I promise that you

40.  Doctrine and Covenants 132:7.

41.  Firmage and Mangrum, Zion in the Courts, 358 (outlining church court decisions to excommu-
nicate and disfellowship Mormons who entered into unauthorized polygamy).
42.  William Clayton, Nauvoo Journal, 9 March 1843.
43.  William Clayton, Nauvoo Journal, 19 October 1843 and Allen, Trials of Discipleship, 189,
194–5.
44.  Joseph and Hyrum Smith, Times & Seasons, 1 Feburary 1844.
Olsen: Islamic/Mormon Polygamy 97

will be damned.”45 Mormon leaders taught that a man called to practice po-
lygamy and who did not do so, risked losing his church office and membership
in life; in the hereafter, he would fall short of the highest salvation and his wife
would be given to a worthier man.46
Another important limitation on the practice of polygamy was the “law of
Sarah.” This law, named for the wife of Abraham,47 required the consent of the
first wife before a man could take additional wives. The revelation outlined:
And again, verily, verily, I say unto you, if any man have a wife,
who holds the keys of this power, and he teaches unto her the
law of my priesthood, as pertaining to these things [polygamy],
then shall she believe and administer unto him, or she shall be
destroyed, saith the Lord your God; for I will destroy her; for
I will magnify my name upon all those who receive and abide
in my law. Therefore, it shall be lawful in me, if she receive all
things whatsoever I, the Lord his God, will give unto him, be-
cause she did not believe and administer unto him according
to my word; and she then becomes the transgressor; and he is
exempt from the law of Sarah[.]48
While difficult to follow, the law of Sarah appears to require the wife’s consent
before a man could take additional wives. The text seems to state that a man is
exempt from the law of Sarah (the necessity of obtaining the wife’s consent) if
she refuses to consent.49 Yet early Mormon leaders interpreted the revelation
as allowing the wife an opportunity to “state before the President the reasons

45.  Provo Conference, Deseret News, 14 November 1855.

46.  Wilford Woodruff’s Journal Typescript, ed. Scott G. Kennedy (Midvale, Utah: Signature Books,
1985), 7:152 (quoting Brigham Young as teaching that “a Man who did not have but one wife in the
Resurrection that woman will not be his but [be] taken from him & given to another But he maybe
saved in the kingdom of God but be single to all Eternity.”).
47.  Genesis 16:1–2 (recounting the story of Sarah giving Abraham her handmaid, Hagar, as a plural
wife).
48.  Doctrine and Covenants 132:64-65
49.  This incongruity was not lost on Congress during the Reed-Smoot hearings. Proceedings
before the Committee on Privileges and Elections of the United States Senate in the matter or the protests
against the right of Hon. Reed Smoot, a Senator from the state of Utah, to hold his seat (Washington
DC: Government Printing Office, 1904) 1:201 (hereafter Reed Smoot Hearings).
98 IMW Journal of Religious Studies Vol. 1:1

why she withholds her consent.”50 If her reasons were “sufficient and justifi-
able,” then the husband was forbidden to take another wife.51 If her reasons for
withholding consent were deemed insufficient, then the husband was permitted
(though not required) to enter into polygamy without his wife’s consent.52
While the loophole in the law of Sarah curtailed a wife’s ability to keep her
husband monogamous by requiring “sufficient and justifiable reasons,” Mormon
women could effectively exercise their power to refuse in other ways. In one
case, a wife in St. George told her husband that “if he ever took another wife,
when he brought her in the front door, [she] would go out the back.”53 In a
similar instance, an elder told his wife that he had received a revelation to marry
another woman, and that the wife must consent to the divine command. But
the next morning, the wife announced that she had received a revelation of her
own, instructing her to “shoot any woman who became his plural wife.”54 In
both instances, the husband remained monogamous.
It also seems that a Mormon wife who had given her consent could later
withdraw it. In the case of Joseph Smith, his wife Emma initially gave consent
for Joseph to marry two additional wives, Emily and Eliza Partridge, in 1843.
Shortly after the wedding, however, she changed her mind and objected so ve-
hemently to the polygamous marriage that she successfully persuaded Joseph
to divorce them.55 As Emily Partridge recorded, “[Emma] sent for us one day
to come to her room. Joseph was present, looking like a martyr. Emma said
some very hard things—Joseph should give us up or blood should flow . . . Jo-
seph came to us and shook hands with us, and the understanding was that all

50.  Orson Pratt, The Seer, Washington DC, January 1853–August 1854, 41 (Salt Lake City: Seagull
Book and Tape, 1993).
51.  Ibid. It should be noted that early Mormons did not take it into their hands to “destroy” the
refusing wife. They assumed that God would destroy her in his own time. Reed Smoot Hearings,
1:201.
52.  Pratt, The Seer, 41.
53.  Kimball Young, Isn’t One Wife Enough? (New York: Henry Holt and Company, 1954), 123.
54.  Ibid.
55.  Emily Partridge Young, Reminiscence, 1899, L. Tom Perry Special Collections, Harold B. Lee
Library, Brigham Young University, Provo, Utah.
Olsen: Islamic/Mormon Polygamy 99

was ended between us.”56 Although greatly dissatisfied with Emma’s decision,
Joseph believed he could do nothing in the face of her refusal. As he explained
to Eliza, “my hands are tied.”57
These regulations show that Islam and Mormonism wrestled with the in-
equality inherent in the practice of polygamy, and both attempted to provide
some social protections to women. Within marriage, these protections were pri-
marily restrictions on the husband. Islam initially allowed any man to practice
polygamy, but restricted how the husband could treat his wives and how many
he could take. Mormonism only allowed certain men to take additional wives,
but neither limited the number nor required a husband to treat his wives equal-
ly. Yet Mormon revelation recognized from the beginning that a wife needed a
voice in her husband’s decision to take more wives, while women in Islam have
only recently acquired this right.

IV. Women and Divorce in Islamic and Mormon

Polygamy
Perhaps women’s most important protection in marriage is the right to
pursue divorce. While Mormonism and Islam discourage divorce, both reli-
gions regarded it as being less evil than requiring the parties to remain in a dys-
functional marriage. Polygamous wives in both Islam and Mormonism had op-
tions available in the pursuit of divorce. This section will analyze and compare
these recourses.

a. The Ability of a Woman in Islam to Pursue Divorce

Classical Shari’ah law reserved the right of talaq, or repudiation, exclu-
sively to the husband.58 Yet in certain limited circumstances, a wife could pur-

56.  Ibid.
57.  Ibid.
58.  Mallat, Introduction to Middle Eastern Law, 357. Talaq took two forms: revocable and irrevo-
cable. Under a revocable talaq, the husband could take his wife back during the waiting period of
three menstrual cycles (‘idda). However, a revocable talaq became irrevocable after three menstrual
cycles or the final pronouncement of talaq. Ibid., 370.
100 IMW Journal of Religious Studies Vol. 1:1

sue a divorce, either by coming to an agreement with her husband to end the
marriage or by petitioning a Qadi (Islamic judge) for a divorce. There were
three basic types of divorce a woman could request: khul’, divorce in exchange
for something of value; ‘isma, delegated divorce; and faskh, judicial annulment.
These options remain open in contemporary Islam.59
Khul’ was an extrajudicial divorce a wife could obtain by giving the hus-
band something in return, the cost being decided by the mutual consent of the
parties.60 The Qur’an states, “if a wife fears cruelty or desertion on the husband’s
part, there is no blame on them if they arrange an amicable settlement between
themselves; and such settlement is best; even though men’s souls are swayed
by greed.”61 The traditional price was the mahr (dower), but historically, some
husbands demanded exorbitant payment in exchange for khul’ and effectively
foreclosed a woman’s ability to obtain a divorce. To correct these abuses, some
countries, such as Algeria, have capped the amount a husband can demand in
exchange for the wife’s liberation.62
A Muslim wife could also terminate a marriage through ‘isma, or dele-
gated divorce.63 A husband could give his wife the power to divorce herself by
pronouncing that “her business was in her own hands.”64 However, a husband
could stipulate whether the divorce would be revocable or not, and determine
how long she could retain the power to divorce.65 The husband had to explain
precisely what he meant, because the wife could not exceed the ambit of the
delegation.66

59.  Esposito, Women in Muslim Family Law, 93.

60.  However, the price was not to exceed that of the dowry, or mahr. Ibid.
61.  Holy Qur’an 4:128. While Mohammad is known to have granted divorces to women seeking
khul’, Islam discourages the practice. Doi, Women in Shari’ah, 98. For a discussion of how jurists dif-
fer on the various procedures associated with khul’, see ibid., 96--100.
62.  Code de Famille, Titre II Art. 54 (1984).
63.  See Ephoz, Women and Law, 224–7.
64.  Ibid., 225.
65.  A husband could give his wife power to make three divorces, which would forever terminate
the marriage, or he could simply give her the power to pronounce a revocable divorce. Ibid., 225.
66.  Ibid., 226–7.
Olsen: Islamic/Mormon Polygamy 101

A third option was to seek faskh, a judicial annulment or abrogation of the

marriage contract.67 In classical Islam, a wife could petition for divorce under
limited conditions. While these conditions vary among different schools and
time periods, a wife could always seek faskh in the wake of apostasy, lack of
equality, or mutual cursing (li’an).68 Also, a wife could usually successfully peti-
tion for divorce successfully if the husband had contracted an incurable disease
or infirmity, such as impotency or madness. Other grounds for faskh included
abandonment through inexcusable absence for over a year, a lengthy prison sen-
tence, or a refusal to share the wife’s bed for over four months. Finally, a wife
could exercise the “option of puberty,” which allowed her to dissolve a marriage
at puberty that her guardian had previously contracted for her.69
Following divorce, classical Islam afforded women some social protec-
tions. While the father invariably retained his position as guardian and his right
to guide the child’s education, the mother would receive custody of a young
child until the child reached a certain age, and the father would have custody
thereafter.70 Following a revocable talaq, the husband had to support the wife
for a period of three menstrual cycles, the time needed to determine if the wife
was pregnant.71 A husband was also under the Quranic obligation to return to
his divorced wife the unpaid portion of her dower.72
While Muslim women retain the option of seeking divorce through the
methods available under the classical paradigm, modern patterns of legal reform
in the Middle East have given the wife additional rights by giving her greater au-
tonomy in pursuing divorce and by limiting the husband’s ability to unilaterally
repudiate her. For example, many countries now consider sufficient grounds for

67.  Doi, Women in Shari’ah, 90.

68.  Ephroz, Women and Law, 257.
69.  See Abd Al ‘Ali, The Family Structure in Islam, 244.
70.  For a discussion of how this practice varied among the schools, see Mallat, Introduction to
Middle Eastern Law, 357.
71.  Ibid., 370.
72.  Holy Qur’an 2:228; 4:4; 4:19.
102 IMW Journal of Religious Studies Vol. 1:1

divorce if the husband fails to provide for his wife.73 Iran recognizes a bride’s
right to insert additional conditions into the marriage contract, reserving her
right to terminate the marriage under the conditions she specifies.74 Iraq, Ku-
wait, Libya, Malaysia, Morocco, and Yemen have given the courts exclusive
power to dissolve a marriage, and a husband attempting to dissolve a marriage
outside of court (such as through talaq) may face prison sentences and fines.75
Similarly, Jordan, Kuwait, Morocco, Somalia, Syria, and Yeman have prohibited
triple talaq, the immediate and irrevocable repudiation of a wife.76 Jordan, Ku-
wait, and Yemen now require husbands to pay maintenance to their wives for a
year following divorce, and Syria has extended the time to three years.77
While classical Islam provided women with several mechanisms to pursue
divorce, the majority of these methods required the husband’s cooperation, and
only in limited circumstances could a wife divorce an unwilling husband. Mod-
ern reforms reflect a growing concern in the Islamic world to protect women by
giving them greater autonomy to divorce their husbands and by restricting the
husband’s power to repudiate the wife.78

b. The Ability of a Woman in Early Mormonism to Pursue Divorce

Divorce79 was not uncommon in polygamous Mormon families, and po-
lygamous wives could obtain divorces relatively easily through the church court
system. Because federal and territorial law did not recognize polygamous mar-
riages, they refused to grant civil divorces to Mormon plural wives. A woman
seeking to end a polygamous marriage had to petition the church’s head office,

73.  Esposito, Women in Muslim Family Law, 96. A court typically gives the husband a period of
grace to pay his maintenance debt, and upon his failure to do so, the court will grant the divorce.
74.  In this tradition, Iran requires certain stipulations to be in every contract, and each must be
signed by both the bride and groom in order to make the marriage valid. Ibid., 104.
75.  Ibid., 94.
76.  Ibid.
77.  Ibid., 97.
78.  Mallat, Introduction to Middle Eastern Law, 355.
79.  “Divorce” as used in this section refers to a cancellation of a marital sealing by ecclesiastical
authority.
Olsen: Islamic/Mormon Polygamy 103

known as the First Presidency, the only body that could cancel a temple sealing,
as outlined in revelation. 80
While church leaders discouraged divorce, they were surprisingly liberal
in granting it, especially in polygamous marriages.81 Brigham Young advised un-
happy wives to “stay with [their] husband as long as [they] could bear with him,
but if life became too burdensome, then leave and get a divorce.”82 This will-
ingness to grant divorce reflects Brigham Young’s earlier teaching that “when
a woman becomes alienated in her feelings and affections from her husband,
it is his duty to give her a bill and set her free,” because a man who contin-
ued to cohabit with a wife who had grown alienated from him was guilty of
“fornication.”83
Divorce in Mormon polygamy cannot be understood without a brief over-
view of the ecclesiastical court system, the only forum in which polygamous
wives could petition for divorce. The church court was a central aspect of the
Mormon community. Local lay ecclesiastical leaders ran the courts, and they
rarely had any legal training or background. They were simply expected to judge
disputes according to the scriptures and the spirit of revelation.84 If a party was
unsatisfied with the court’s decision, they could appeal it to a higher court and
ultimately to the church’s First Presidency.85 Initially, Brigham Young heard ev-
ery divorce petition, but the workload soon overwhelmed him. He authorized
the church courts to hear marriage disputes, and he largely followed their rec-
ommendations in deciding whether to cancel polygamous sealings.86
Mormon leaders never established formal procedures for church courts,
but procedure throughout the courts developed along similar lines. Precedent

80.  Doctrine and Covenants 132:7.

81.  Firmage and Mangrum, Zion in the Courts, 325–6. Brigham Young granted at least 1,645 di-
vorces during his presidency. Van Wagoner, Mormon Polygamy, 92.
82.  President’s Office Journal, 1858–1863 Book D, ed. Fred Collier (Hanna, Utah: Collier’s Pub-
lishing Co., 2006), 297.
83.  James Beck Journal, 8 October 1861, LDS Archives, Salt Lake City, Utah (hereafter LDSA).
84.  Doctrine and Covenants 107:71–2.
85.  Ibid., 285–6.
86.  Firmage and Mangrum, Zion in the Courts, 322–3.
104 IMW Journal of Religious Studies Vol. 1:1

did not control decisions, but decisions tended to follow customs based on
scriptural interpretation and instructions from Mormon leaders.87 The courts
had little respect for legal technicalities or lawyers, but occasionally allowed par-
ties to be represented by counsel if the courts believed it would further the in-
terests of the church.88 Leaders accepted all relevant evidence and ignored the
common law exclusion of hearsay.89
In the church courts, wives could petition for divorce on grounds such as
adultery, “licentious conduct, habitual drunkenness, desertion for more than
a year, or brutality.”90 But a wife did not need to base her petition on her hus-
band’s moral shortcomings to be successful. Some wives obtained divorces for
little more than personal dislike of their husband.91 One woman in Fillmore,
Utah, sought a divorce solely because she had no affection for her husband.”92
While the church court stated her reasons for seeking divorce were “not just,” it
recommended divorce all the same.93
However, women at times had difficulty in pursuing divorce, especially in
posthumous proceedings. Since Mormons believed that a marriage solemnized
by the priesthood lasts beyond death, some women petitioned for divorce after
the death of their husbands. In these cases, women primarily sought to divorce
their husband because of his moral shortcomings that made his salvation a re-
mote possibility.94 Church leaders were very reluctant to grant divorces in these
cases, because the “parties are out of reach and are not able to defend them-
selves” and could be “wronged by the cancellation of the sealing.”95 According-
ly, the church courts assembled witnesses in posthumous divorce proceedings
87.  Ibid., 290.
88.  Ecclesiastical Court Cases (hereafter ECC), 1873, fd. 10, LDSA.
89.  Firmage and Mangrum, Zion in the Courts, 283; ECC, 1885, fd. 27, LDSA; Disfellowship Files
(hereafter DF), 1885, fd. 2; 1897, fd. 14; 1891, fd. 3; 1893, fd. 5, LDSA. For an analysis of these
decisions, see Firmage and Mangrum, Zion in the Courts, 280, 326–7.
90.  Firmage and Mangrum, Zion in the Courts, 280, 326–7.
91.  Firmage and Mangrum, Zion in the Courts, 327.
92.  ECC, 1883, fd. 6 and 1886 fd. 8, LDSA.
93.  ECC, 1883, fd. 6, LDSA.
94.  Firmage and Mangrum, Zion in the Courts, 331–2.
95.  ECC, 1884, fd. 10, LDSA.
Olsen: Islamic/Mormon Polygamy 105

to testify as to the character and standing of the deceased, and the council would
base its decision largely on the testimony presented.96
While the language of some decisions seems to suggest a presumption that
women were to blame for marital problems, church courts often treated women
more favorably than men. While the courts at times chided women for their
“abusive nature”97 and admonished them to “humble [themselves] before God”
and “honor and respect their husbands,”98 they granted women divorces more
frequently than men.99 The courts also seemed to have treated a woman better
than a man in the same situation. When a wife in 1883 sought a divorce without
“just cause,” the records do not indicate any punitive action taken against her.100
In a similar situation, a husband successfully petitioned for divorce even though
he “had no just cause to put away his wife,” yet Brigham Young denounced him
as a “fool” and “caution[ed] all the girls against him” for three years.101
Following divorce, Mormon women enjoyed greater rights than their Is-
lamic counterparts. In most cases, the church courts awarded custody to the
woman, regardless of the age or gender of the children. In an 1861 divorce case,
Brigham Young stated “I do not believe in a man getting children,”102 and church
courts adopted this rule in handling divorce cases.103 Additionally, a Mormon
woman had claim upon her ex-husband for support, and “he [was] never com-
pletely dissolved” from this obligation.104
Mormon polygamy in practice often provided women with safeguards
beyond those Islamic women enjoyed. Contrasted with a Muslim husband’s
power of talaq, Mormonism strictly limited a husband’s ability to divorce his
96.  Ibid.
97.  ECC, 1866, fd. 11, LDSA.
98.  Firmage and Mangrum, Zion in the Courts, 323.
99.  Ibid., 324.
100.  ECC, 1883, fd. 6, LDSA.
101.  ECC, 1856, fd. 3, LDSA.
102.  ECC, 1861, fd. 1, LDSA.
103.  See, ECC, 1852, fd. 3, LDSA (noting that “it was general counsel from the Presidency that
women are more competent to take care of little children than a man.”)
104.  George Q. Cannon, A Review of the Decision of the Supreme Court in the Case of George Reyn-
olds v. the United States (Salt Lake City: Deseret News Printing Establishment, 1879), 36.
106 IMW Journal of Religious Studies Vol. 1:1

wife by requiring him to petition the church courts. Mormon women also had
greater autonomy in seeking divorce than Muslim wives, and got custody of the
children when the marriage ended without regard to the age or gender of the
children. Mormonism also recognized a divorced wife’s continuous right to ali-
mony, while Islam only required the husband to give his divorced wife the un-
paid portion of the dower at the time of repudiation. However, in other aspects,
Islam allowed women more autonomy than Mormonism. For example, a Mor-
mon woman could not add conditions into the marriage contract and reserve
the right to divorce under stipulated conditions.

V. Conclusion
Mormonism and Islam both attempted to mitigate the natural unfairness
in polygamy in unique ways. The Quranic revelation required husbands treat
their wives equally and forbid a man from taking more than four wives. It also
allowed a wife to seek divorce in some circumstances. Modern Islam increasing-
ly restricts a husband’s power to repudiate a wife, and is gradually recognizing a
divorced wife’s right to alimony. In contrast, the Mormon revelation only limits
polygamy by requiring that it be authorized by the priesthood and recognizing
the first wife’s right to refuse her consent in some circumstances. Yet while the
revelation provides fewer rights than the Qur’an, in practice Mormon women
had greater latitude than their Islamic counterparts in alimony, custody, and the
ability to pursue divorce for any reason.
It is interesting to note how, though separated by centuries and hemi-
spheres, both Islam and Mormonism established safeguards and procedures de-
signed to protect plural wives, demonstrating that both religions were troubled
by the inequality inherent in polygamy. While Mormonism abandoned the
practice over a century ago, the progress of gender equality in Islam demon-
strates that Tocqueville was correct in noting that “the principal of equality is,
therefore, a providential fact . . . [i]t is universal, it is lasting, and all events as
well as men contribute to its progress.”105

105.  Mallat, Introduction to Middle Eastern Law, 355–6.